Friday, September 18, 2015

The big issue in this case was the constitutionality of seizing the Mongols insignia – or the insignia of any motorcycle
club. Carter wrote: “Defendant asserts that the forfeiture sought is
impermissible under trademark law and is unconstitutional under the
First, Fifth, and Eighth Amendments of the United States Constitution.
Therefore, it argues, the Indictment should be dismissed or, in the
alternative, the forfeiture allegation should be stricken.”

Citing a thicket of precedents Carter endorsed the government’s argument
that forfeiture, the whole point of the case, wasn’t really the whole
point of the case but merely a possibility. Welk has been arguing for
six years that any ruling on the forfeitability of the Mongols
trademarks before compelling
the club to defend itself in a four-month-long trial would be
“premature adjudication” and Carter seems to admire the pettifoggery in
that.

Distinctness

Carter did rule, however, that the government cannot indict a club as an
“enterprise” for racketeering without also indicting a group who can be
actually punished. That is the good news for the Mongols and other
motorcycle clubs. The indictment makes “no meaningful distinction
between the association Mongol Nation and the enterprise of the Mongols
Gang,” Carter wrote. So Mongols Nation is off the hook.

Given the extent of the war on motorcycle clubs, it seems likely that
government prosecutors are poring over this dark forest of words
already. But Yanny thinks the decision is “pretty bullet proof. They
can’t just indict a club as a racketeering enterprise because some club
members are racketeers.”

That would seem to end it, but who knows what hope jaded prosecutors
might take from: “Having decided the Indictment fails for lack of
distinctness, the Court does not reach Defendant’s arguments concerning
whether it is proper to premise liability on predicate acts an
unincorporated association it is not legally capable of committing
itself, including murder and attempted murder. Indictment ¶¶ 39, 41, 42,
43, 46, 47. The Court will note that the Government could identify no
other case where an unincorporated association, or other entity
defendant, was held liable for predicate acts of violent crime. However,
as the Indictment is otherwise flawed, the Court need not reach this
issue to which the parties devoted only cursory attention in the
briefing.”